Changes to the absence rules for EU Settlement Scheme

The statement of changes to the immigration rules HC 836, published on 24 June, will amend the definition of “continuous qualifying period” in Annex 1 of Appendix EU from 16 July to offer an another way for a pre-settled status holder to complete a five year continuous residence period.

The change creates an alternative set of absences rules for pre-settled status holders to those that already exist, so they have an either/or scenario in terms of qualifying for settled status. The existing continuous residence rules will continue to operate, but it is fair to say that they are significantly more convoluted than new addition to the continuous qualifying period definition, which states:

(ii) (where the person has limited leave to enter or remain granted under paragraph EU3 or EU3A of this Appendix) any period(s) of absence which did not exceed a total of 30 months in the most recent 60-month period, as at the date of application or (as the case may be) at the date on which, under paragraph EU4, the Secretary of State is considering whether to grant them indefinite leave to enter or remain under paragraph EU2 or (as the case may be) EU2A, without a valid application under this Appendix having been made;

Therefore, the new absences rule that will apply from 16 July means that if pre-settled status holders can prove they have been resident in the UK for at least 30 months in the last 60 months, they will have completed a five-year continuous qualifying period. This means as long as pre-settled status holders have been in the UK for at least two and a half years at some point over the course of the last five years, they will be eligible for settled status (if they can prove this).

There is no restriction on how the 30 month allowance is used and so someone could have five years where they spend one month in the UK followed by one month outside the UK, or, they could have a single break from the UK of just under two and a half years, as long as the rest of the five year period is spent in the UK (though see below on lapsing leave as unfortunately it is not quite that simple). Any absences that meet the new rules do not require justification, and so even long absences are accepted as long as overall the pre-settled status holder is under the 30 month threshold.

Why the generous change in approach?

The explanatory memorandum accompanying the changes states:

5.15 However, stakeholders have highlighted some confusion on the part of pre-settled status holders regarding permitted absences from the UK, which may have led some to inadvertently break their continuous residence in the UK (and thereby cease to be eligible for settled status) by exceeding the permitted absence(s) from the UK. To simplify the assessment of continuous residence, these changes enable a pre-settled status holder to be granted settled status where they have been resident in the UK for at least 30 months in total in the most recent 60-month period. This can be any 30 months within that 60-month period.

Essentially, it seems the Home Office has rightly concluded that the complexity of the absence rules for those in their five-year qualifying period for settled status had become (and perhaps always were) extremely complicated, not helped by the end of the transition period falling bang in the middle of the Covid-19 pandemic. The unintended consequence of this is that many pre-settled status holders who have committed to living in the UK post-Brexit were at risk of falling out of scope of the EU settlement scheme by not qualifying to move from pre-settled to settled status.

Unlike with Free Movement law, there is no option to start a new residence period under the Withdrawal Agreement after 31 December 2020, meaning the consequences of not meeting the conditions to move from pre-settled to settled would likely mean a terminal loss of residence rights.

There was also the looming issue of proportionality assessments, as the Withdrawal Agreement requires that a decision to remove residence status if the person ceases to meet the requirements to be proportionate. In most cases it would not be proportionate to remove pre-settled status for minor breaches of the residence rules, but to understand how minor the breaches were and consider the other factors that feed into proportionality assessments (impact on family members etc), would have involved fairly arduous engagement from all parties concerned.

The new absence rule is a pragmatic way to address this issue by maintaining the need for the UK residence to be for a sufficient period to qualify for settled status (i.e. 50% of the five-year qualifying period), whilst jettisoning the trickier aspects of the rules that were catching people out, such as six months and one day outside the UK in a 12 month period potentially resulting in a breach, or someone on a justified extended absence for up to 12 months (e.g. for overseas studies) who cannot meet the requirement for this to be a single absence period, simply because they returned to the UK very briefly to visit their family.

The Withdrawal Agreement did not require the Home Office to change the existing absences rules, and so the decision to do so on a more favourable domestic basis is a really good development for those with pre-settled status, which should help many people who otherwise may have struggled to move settled status (even though they have committed to living in the UK), to do so. Even for those who meet the existing continuous residence rules, the use of the alternative more flexible absence approach will hopefully simplify their settled status applications, for example, by removing the need to justify absences that have exceeded six months in a 12-month period.

Does the new approach to pre-settled status absences only apply to ‘manual’ settled status applications or does it apply to automation cases? 

The new approach applies to both (see the reference to paragraph EU4 in the new addition to the continuous qualifying period definition). However, although the new approach will apply in manual settled status applications from 16 July, the change could be harder to apply in the automatic process due to the nature of how automation works, which is by searching National Insurance records.

Currently automation looks for National Insurance records showing at least six months residence in each 12-month period. But once the new definition applies, the system will need look for 30 months of National Insurance records at any point in the five years to make the grant of settled status. This means work needs to be carried out to implement the new National Insurance search parameters to the automation assessment.

On this basis, it seems good advice if pre-settled status holders can prove they meet the new rules to make a settled status application, rather than wait for an automated decision – even if they think they have sufficient National Insurance records – given this might not be immediately forthcoming (noting also that only pre-settled status holders coming to the “expiry” date of the status are fed into the automation process).

What if a pre-settled status was not upgraded to settled status automatically before?

If pre-settled status holders have already been considered for an automatic grant of settled status, but this was unsuccessful because they did not have sufficient National Insurance records, it is possible that they could be automatically granted settled status once the new rules are implemented in the automation process.

If pre-settled status holders are not granted settled status automatically their pre-settled status is extended for five years, which means they can either apply for settled status manually or the Home Office may reconsider them for an automatic grant of settled status in the future. If when the pre-settled status holder is reconsidered for automation they have sufficient National Insurance records to show 30 months of residence in the last five years (working back from the date they are considered for automation), they should receive an automatic grant of settled status.

What if the pre-settled status holder has already been refused settled status?

Pre-settled status holders who applied but were refused settled status because the Home Office did not accept they met the existing continuous residence rules, can apply again once the new rule is in force from 16 July. If they meet the new rule they can be granted settled status.

As Home Office decisions to refusal settled status did not generally include a decision to curtail the existing pre-settled status, most pre-settled status holders refused settled status will still hold the pre-settled status and therefore, can make an application for settled status under the new rule.

If pre-settled status holders only need to show 2.5 years of UK residence, do they still need to wait for 5 years to apply?

Yes, the requirement that pre-settled status holders in most cases have completed a five-year continuous residence period has not changed. This means someone applying/being automatically considered for settled status must have moved to the UK at least five years ago.

As EU citizens needed to resident by 31 December 2020 to qualify under the EU Settlement Scheme (unless they came after this date as a sponsored joining family member), most will have begun their residence period five years ago and so meet this requirement. Those who do not yet meet this requirement, will do so by the end of 2025. Joining family members also have to show they have completed a continuous qualifying period of five years to be granted settled status (unless they are children under-21 years).

There are some limited situations where settled status can be granted with less than five years (ceased activity cases) which are unaffected by the new approach to absences.

Can pre-settled status holders use the automatic two/five years extensions to meet the new rule?

Yes, the new rule assesses the most recent five-year period from when pre-settled status holders apply manually for settled status, or from the date they are considered for an automatic grant of settled status. There is nothing in the rule that prevents pre-settled status holders from relying on their automatic extensions to build up the 30 months of UK residence required to meet the new rule. However, please see the below comment on curtailment cases.

Does the 60-month period being assessed need to have started before 31 December 2020?

No, with a big ‘but’ attached. As the new absence rules only apply to those who hold pre-settled status, there is a built-in connection to the residence period beginning by 31 December 2020, because only EU citizens resident by this date could qualify for pre-settled status (family members might have been resident by this date but could have started residence periods after this date as joining family members).

So even though from 01 January 2026 the 60-month period being looked at will not include any time connected to 31 December 2020, the fact that the person has pre-settled status means they will have been resident by the end of the transition period (unless they are a joining family member). The point being pre-settled status holders who apply from 01 January 2026 (or are considered automatically), can still meet the new absence rule despite this being more than five years after the end of 2020.

Do these changes benefit late EU Settlement Scheme applicants?

No, the rules only apply to those who have been granted pre-settled status. As the more flexible approach to absences is not required by the Withdrawal Agreement, there does not seem to be any legal case on this basis that the new rule should apply to late applicants who have reasonable grounds for missing the application deadline.

Does this new approach mean that the Home Office is not going to curtail any pre-settled status?

There is nothing about the new approach to absences that prevents the Home Office from removing pre-settled status from persons who no longer meet the EU Settlement Scheme requirements, if it is proportionate to do so. This means pre-settled status holders who have broken continuous residence and no longer meet the continuous qualifying period definition can have their pre-settled status removed.

Although the new absence rules are more flexible, they still require 30 months of UK residence within the last five years, which means that some pre-settled status holders who have not spent very much time in the UK at all will not meet the existing continuous residence rules or the new rule.

In this situation there is no chance of the pre-settled status holder meeting the existing rules as continuous residence is irrevocably broken, but there is the possibility of meeting the new rules given the five-year period being assessed is a rolling period based on the date of application (or consideration for automation). However, until they have enough UK residence to satisfy the new rule, they longer meet the EU Settlement Scheme requirements and so can have status curtailed or cancelled under Annex 3 of Appendix EU (subject to a proportionality assessment).

Example

An EU citizen was living in the UK in 2020 and was granted pre-settled status in July 2020. They decided to leave the UK because of Covid-19 and since they left, each year they have visited for very short periods but have never resumed living in the UK.

As they have never had more than two years continuously outside the UK they still hold pre-settled status. But because they have spent very little spent very little time in the UK over the past five years, they can never meet the existing continuous residence rules and right now, they are a long way from the 30 months needed to meet the new residence rule.

In June 2025 they received an automatic five-year extension to their pre-settle status which is due to expire in July 2025. In principle, if they move back to the UK relying on their pre-settled status extension and spent all their time here, in two and half years’ time they will have accrued the 30 months of UK residence needed to meet the new rule.

However, during this time building up the 30 months of residence the Home Office could contact them at any time and seek to curtail their status, because they no longer meet the EU Settlement Scheme conditions. Given they effectively gave up living in the UK in 2020 it would clearly not be disproportionate to remove their status which would leave them without the right to live in the UK.

This is probably quite an extreme example to make the point about how there is a risk of curtailment for those who have not yet got the 30 months needed to meet the new rule. There could be many pre-settled status holders who are on their way to building up the 30 months needed (i.e. are already committed to living in the UK) but who are not there yet, and hopefully they will not face curtailment decisions before they can get over the line.

What about lapsed leave cases?

Pre-settled status holders who were absent from the UK for more than two continuous years before 21 May 2024, are treated by the Home Office as if their status has automatically lapsed under the operation of Article 13 of The Immigration (Leave to Enter and Remain) Order 2000 as it applied then. Since 21 May 2024, pre-settled status only lapses if the person has been outside the UK for more than five continuous years.

This has very significant implications for the application of the new absence rules because, even though it is possible under the rule to have an absence of up to 30 months consecutively, if someone was continuously absent for more than two years before 21 May 2024 ,they are considered to no longer hold pre-settled status as it is deemed to have lapsed. To benefit from the new rule a person must have extant pre-settled status and therefore, despite not exceeding the allowance that is offered by the new rule, the person has no ability to benefit simply based on the date that the Home Office amended the Order to extend the lapsing leave allowance to five continuous years.

So someone who crossed the consecutive two-year absence on 20 May 2024 cannot succeed under the new rule, but someone who crossed the consecutive two-year absence on 22 May 2024 can. Or someone who was aware that to maintain pre-settled status they needed to return for at least one day within the two-year period, but the person who was unaware of the rule loses their pre-settled status and so cannot get settled status. These feel like arbitrary outcomes for persons are ostensibly in the same absence situation. In this context, it is worth considering that many of the pre-settled status holders who have had two years consecutively outside the UK probably did so because of the COVID-19 pandemic, which means that these longer absences took place before the Order was amended.

So whilst the thrust of the new approach is extremely welcome, particularly in the context of addressing the disruption caused by the COVID-19 pandemic, arguably there is more nuance needed to ensure the fairness that the Home Office is striving for is felt by all those the change in approach is aiming to benefit. There is also the legal argument that the lapsing leave rules are inconsistent with how Withdrawal Agreement requires status to be actively not passively removed. Hopefully a practical solution can be found for those who currently fall foul of the lapsing leave rules, to avoid the need to test this legal argument.